LCQ3: Prevention of divulgence of government confidential information during the 2017 Chief Executive Election
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Following is a question by the Hon Dennis Kwok and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (March 1):
Question:
It has been reported that during the 2012 Chief Executive Election, a candidate who was a former Member of the Executive Council (ExCo) allegedly violated ExCo's principle of confidentiality by divulging at an election forum the deliberations of ExCo. The incident aroused wide public concern at that time. The 2017 Chief Executive Election will be held on the 26th of this month and the nomination period will end today. Persons seeking nomination include several former ExCo Members who are also former Secretaries of Department or Directors of Bureau. Besides, among such persons' electioneering team members and advisers, quite a number of them are holding or once held public offices. In this connection, will the Government inform this Council:
(1) whether it has put in place measures to prevent candidates of the 2017 Chief Executive Election as well as their electioneering team members and advisers from divulging government confidential information to which they have/had access due to their public offices; if so, of the specific measures; if not, the reasons for that; and
(2) whether it has studied, where there has been such divulgence of government confidential information as mentioned in (1), which ordinance(s) and regulation(s) that the Government may invoke to hold the parties concerned responsible, as well as the penalties concerned; if so, of the details?
Reply:
President,
With regard to Member's question, after consulting the relevant offices and bureaux, I am providing a consolidated reply as follows.
The Government has set very stringent rules to prevent any leakage of classified information. Under Part III of the Official Secrets Ordinance (Cap. 521) (the Ordinance), politically appointed officials (PAOs) and civil servants both fall within the definition of "public servants" and must therefore abide by the provisions therein applicable to "public servants". Pursuant to the Ordinance, a public servant commits an offence if, without lawful authority, he makes a damaging disclosure of any information, document or other article relating to security or intelligence that is or has been in his possession by virtue of his position, and shall be liable to a fine of up to $500,000 and imprisonment for two years. PAOs or civil servants may also be subject to the common law offence of Misconduct in Public Office if the act of unauthorised disclosure of government information constitutes a misconduct of their public office.
Besides, it is set out in paragraph 3.4 of the Civil Service Code that civil servants shall use information gained by virtue of their official position for authorised purposes only. They shall not disclose documents, information or knowledge received in confidence from others in the course of their duties or by virtue of their official position. Civil servants are also required to observe administrative regulations and instructions, binding them through their employment contracts. Civil servants who have disclosed classified government information without authority is liable to disciplinary proceedings, and criminal prosecution in certain circumstances.
With respect to PAOs, it is set out in the Code for Officials under the Political Appointment System that all classified information, documents or other articles protected against disclosure by the Ordinance which has come into the PAOs' possession as a result of their appointment in the Government, remain to be covered by the Ordinance after their stepping down from office and may not be disclosed. In other words, PAOs should still observe the relevant provisions of the Ordinance after they have stepped down from office.
As regards the mechanism on confidentiality of the Executive Council (ExCo), under Article 54 of the Basic Law, the ExCo is an organ to assist the Chief Executive in policy-making. ExCo Members are obliged to comply with this principle. According to Section 18 of the Oaths and Declarations Ordinance (Cap. 11), a person shall take the Oath of Fidelity before he/she becomes a Member of the ExCo, pledging that "I will not, except with the authority of the Chief Executive, reveal the agenda or proceedings of the Executive Council, or any document communicated to me or any matter coming to my knowledge in my capacity as a Member of the Executive Council; that I will not seek to make or assist others to make any personal gain through the exercise of my official duties and I will be bound by and be collectively accountable for the decisions of the Executive Council."
The principle of confidentiality is to ensure that ExCo Members, without any pressure, speak freely and honestly in giving advice to the Chief Executive, thereby enabling the Chief Executive to listen to different views fully when assessing the pros and cons of policies. In other words, the principle of confidentiality underscores the effective operation of the ExCo, and must be sternly upheld and respected. In case of an ExCo Member violating the principle of confidentiality, the Chief Executive may, depending on the circumstances, take appropriate action including issuing an advice, a warning, removing him from office, or taking legal action. If any ExCo Member discloses classified government information without authority, he/she may be liable for breach of confidence in tort, as well as the common law offence of Misconduct in Public Office.
Regarding the electoral legislation, under Section 26 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554), a person engages in illegal conduct at an election if he/she publishes a materially false or misleading statement of fact about a particular candidate or particular candidates for the purpose of promoting or prejudicing the election of the candidate or candidates. On conviction, such person shall be liable to a fine of up to $200,000 and imprisonment for three years.
In the event of any of the above regulations and legislation being breached, the relevant authorities and the Electoral Affairs Commission will take appropriate follow-up action, and where necessary, refer such cases to law enforcement agencies for investigation.
Ends/Wednesday, March 1, 2017
Issued at HKT 13:50
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